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>> 

DEPARTMENT OF THE INTERIOR 

UNITED STATES INDIAN SERVICE 


REGULATIONS 

RELATING TO THE 

DETERMINATION OF HEIRS 

AND 

APPROVAL OF WILLS 

EXCEPT MEMBERS OF THE FIVE 
CIVILIZED TRIBES AND 
OSAGE INDIANS 


APPROVED SEPTEMBER 13, 1915 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1915 








D. of Do 
MOV 9 1915 









i 






DETERMINATION OF HEIRS AND APPROVAL OF WILLS. 

1. Disposal of trust allotments to heirs of intestate Indians. —The act 
of June 25, 1910 (36 Stat. L., 855), provides that when any Indian to 
whom an allotment of land has been made, or may hereafter be made, 
dies before the expiration of the trust period and before the issuance 
of a fee simple patent, without having made a will disposing of said 
allotment, as therein provided, the Secretary of the Interior, upon 
notice and hearing, shall ascertain the legal heirs of the decedent, and 
his decision thereon shall be final and conclusive. 

2. Disposal of trust allotments by will. —Any person of the age of 
21 years having any right, title, or interest in-any allotment held 
under trust or other patent containing restrictions on alienation or 
individual Indian moneys or other property held in trust by the 
United States, shall have the right, prior to the expiration of the 
trust or restrictive period, and before the issuance of a fee simple 
patent or the removal of restrictions, to dispose of such property by 
will in accordance with these regulations. Act of June 25, 1910 
(36 Stat. L., 855), as amended by the act of February 14, 1913 (37 
Stat. L., 678). 

3. Validity of will; how attested. —No will thus executed shall be 
valid or have any force or effect unless and until it shall have been 
approved by the Secretary of the Interior, who may approve or 
disapprove the will either before or after the death of the testator. 
(Ibid.) 

J. Fraud in connection with the will. —Where a will has been 
approved and it is subsequently discovered that there has been 
fraud in connection with the execution or procurement of the will, 
the Secretary of the Interior is authorized within one year after the 
death of the testator to cancel the approval of the will, and the 
property of the testator shall thereupon descend or be distributed in 
accordance with the laws of the State in which the property is located. 
(37 Stat. L., 678.) 

5. Trust period continued and how terminated. —The approval of 
the will and the death of the testator shall not operate to terminate 
the trust or restrictive period, but the Secretary of the Interior may, 
in his discretion, cause the lands to be sold and the money derived 
therefrom, or so much thereof as may be necessary, used for the 
benefit of the heir or heirs entitled thereto, remove the restrictions, 
or cause patent in fee to be issued to the devisee or devisees, and pay 
the moneys to the legatee or legatees, either in whole or in part, from 

8633°—15 ^ (3) 


4 


time to time, as he may deem advisable, or use it for their benefit. 
(37 Stat. L., 678.) 

6. Five Civilized Tribes and Osage Nation excluded. —The foregoing 
sections numbered 1 to 5, inclusive, do not apply to the Five Civ¬ 
ilized Tribes and Osage Indians. 

7. Examiners of inheritance. —There shall be appointed by the 
Commissioner of Indian Affairs such a number of qualified persons, 
to be known as examiners of inheritance, as may be required, at such 
compensation as may be authorized by the Secretary of the Interior. 

8. Assignment of field work. —The Commissioner of Indian Affairs 
will assign examiners to such parts of the Indian country as in his 
discretion may be required. 

9. Clerical and other assistance. —Examiners may, where the duties 
involved in the assignment require, be allowed clerical and other 
assistance as the department may deem necessary for the expeditious 
transaction of business. 

10. Superintendents to act as examiners. —Where no examiner of 
inheritance has been assigned to a reservation, and the determina¬ 
tion of heirs on such reservation is necessary for special reasons, the 
superintendent in charge shall perform the duties and functions of 
an examiner. 

11. Preliminary report of conditions. —The expeditious determina¬ 
tion of all heirship cases is important, and examiners of inheritance, 
on assuming the duties of a special assignment, will, as early as prac¬ 
ticable, after consultation with the superintendent, forward to the 
Commissioner of Indian Affairs a report of the condition of these 
estates, and then, in the order of their relative importance, proceed' 
to proper hearings. 

12. Notice of hearing. —Having selected an estate deemed of im¬ 
portance for an early hearing, the examiner of inheritance shall, for 
30 days, in five or more conspicuous places on the reservation or in 
vicinity of the place of hearing, post notices of time and place when 
at which he will take testimony for the purpose of determining the 
legal heirs of the deceased Indian [naming him], and calling upon all 
persons interested in the proceedings to be present. 

13. Examination of records. —Prior to the hearing the examiner 
shall carefully inspect the allotment, census, annuity rolls, and other 
records on file at the agency, as well as obtain all other information 
which may enable him to make a prima facie list of the heirs of such 
deceased Indians. 

H. Personal or mail notice to dll interested parties. —A written notice 
of the proposed hearing, giving full information as to the estate, 
names of alleged claimants, time and place of hearing, shall be sent 
to each claimant or presumptive heir who lives on the reservation, 
and served on him personally, if he can be found, and those living off 


5 


the reservation by registered mail. These notices must be sent a 
sufficient length of time in advance of the date of hearing to enable 
claimants to be present. 

15. Proof of service specially important .—A copy of each notice to‘ a 
claimant or presumptive heir indorsed by the person serving the 
same on the party to whom addressed that the original was delivered 
to him personally at the place named and on the date stated; or the 
original notice indorsed by the clamant or presumptive heir that 
service was accepted on the date and at the place stated; or the 
registry receipt card must be filed in the record of every case. 

16. Full notice must be given .—Unless a full 30-day notice has been 
given, as provided herein, no hearing shall be held except by special 
permission of the department. 

17. Hearings outside of an Indian reservation .—Whenever it becomes 
necessary to hold hearings to determine the heirs of fourth section 
allottees, or of Indians whose trust or restricted property is outside 
the limits of a reservation, the examiner of inheritance will designate as 
the place of holding his hearings some central point as easily accessible 
as practicable to as large a group of claimants as possible, and will in 
all particulars adhere to the general rules governing such hearings on 
the reservation. He will be allowed all reasonable expenses in pro¬ 
curing the necessary quarters for such purposes, prior authority 
being first obtained from the department. 

18. Authority to hold hearings can not be delegated .—These hearings 
are in the nature of judicial proceedings and not merely meetings or 
councils of the Indians. The power to conduct a hearing can not be 
idelegated by the examiner of inheritance or the superintendent to 
mny other person. If at any time it should become necessary for 
some person other than the examiner of inheritance or the superin¬ 
tendent to conduct the hearing, such person must be expressly 
Authorized thereunto by the department. 

19. Minors represented by guardians ad litem .—Minors must be rep¬ 
resented at the hearings by guardians ad litem appointed by the 
examiner. 

20. Attorneys .—Parties interested in any heirship cases may be 

I -epresented by counsel before the examiner of inheritance, if they so 
lesire. 

21. Examination in writing .—Where attorneys appear, the exami- 
lation and cross-examination must be conducted in writing through 
he examiner of inheritance. 

22. Objections , how noted .—Where an objection is made by an at¬ 
torney to a question or answer, it should be noted on the records by 
he examiner of inheritance. 

23. Attorneys must file power of attorney .—Attorneys must appear 
>efore the examiner of inheritance or the department by a power of 

i 


6 


attorney from their respective clients, and must be licensed attorneys 
admitted to practice. 

24 . Attorneys may appear before the department. —Attorneys may 
also appear before the Indian Office or the department and submit 
written arguments or briefs in behalf of their clients. Where there 
are two or more parties with conflicting interests represented by 
counsel, the attorneys on the respective sides shall serve upon the 
opposing counsel, within a reasonable time, a copy of their written 
argument or brief filed in the case. When this has been done, a 
reasonable time will be given in which to file a reply brief, the same 
rule to be observed as above. 

25. Witnesses’ attendance. —The examiner shall summon all persons 
named by the claimants to appear and testify at the hearings, and 
also shall summon other persons who are acquainted with and have 
direct knowledge of the family history of the decedent. By personal 
investigation prior to the hearings he should thoroughly acquaint 
himself with the records, and so far as practicable of the kind and 
value of the testimony which should be taken, so that only material 
witnesses may be required. 

26. Hearings and testimony. —On the day fixed in the notices here¬ 
tofore given the examiner will proceed to hear the case under such 
conditions as he may establish for the convenience and expedition of 
the case. The allegations of the several claimants shall be read to 
those assembled, and the witnesses examined on oath, and their testi¬ 
mony reduced to writing and signed at the end thereof. Any claim¬ 
ant may cross-examine a witness, and the examiner must so conduct 
all examinations as to develop the actual facts on which an intelli¬ 
gent decision can be predicated. If, in addition to oral testimony, 
affidavits or depositions are introduced, they must be read, and any 
opposing claimant may require the presence of the affiant, if prac¬ 
ticable, either at that hearing or at a subsequent one, and an oppor¬ 
tunity given for cross-examination or have counter interrogatories 
answered. All statements, testimony, and affidavits at the hearing 
must be made a part of the record. 

27. Credibility of witnesses. —The examiner shall give the age, sex, 
tribe, address, and means of knowledge on the part of witnesses, 
interest in case, and his impression of the intelligence and credibility 
of the person testifying. 

28. Oaths, authority to administer. —Examiners of inheritance are 
authorized to administer oaths in investigations committed to them. 
(Ind. appro, act 1915, 38 Stat. L., 582.) 

29. Witnesses, care in summoning. —Examiners must carefully 
avoid all unnecessary expenses, and see that there is no excess number 
of witnesses to any material fact. A careful working up of the case 


7 

before the hearing will enable him to handle it inexpensively as well 
as conclusively. 

30. Compulsory attendance of witnesses. —As these hearings will 
usually be held near the place where most of the witnesses reside it 
should not be difficult to have the attendance of all required wit¬ 
nesses, but in case witnesses are wanted whose testimony the exami¬ 
ner knows is material, and the witness refuses to attend, the exami¬ 
ner should use all possible means to procure the attendance of such 
witness, and upon persistent refusal the matter will be reported to 
the Indian Office 

31. Witnesses 1 fees, who to pay. —Witnesses are expected to testify 
without cost, but in case it becomes necessary the expense must be 
paid by the party calling them, and if the examiner is satisfied that 
material evidence from disinterested persons should be procured, the 
expense thereof, if charged, will be paid through the Indian Office; 
but in no case will more than two witnesses be paid by the Govern¬ 
ment. 

32. Superintendents to hold hearings , when. —On all reservations 
where no examiner of inheritance has been assigned the superintend¬ 
ent must, under the same rules and restrictions, hold all required 
hearings for the determination of the heirs of deceased allottees. In 
case an examiner is subsequently assigned to his reservation the 
superintendent will deliver to him all the papers and records in all 
pending cases, but where the case is ready for report he will complete 
and forward direct to the Indian Office. 

33. Speedy hearings must be held. —Hearings should be had as 
speedily as possible in all cases of deceased allottees, and must be 
held in all cases of applications for patents in fee, sales, or partition 
of inherited Indian land. Where the heirs of an allottee have been 
once determined by the department on notice and hearing, however, 
no further hearing is necessary unless one or more of the heirs should 
die or other circumstance render a new hearing necessary. 

3 ^. Report and its essential features. —At the conclusion of all the 
proceedings, a prompt report must be submitted on Form 5-107 and 
the instructions contained therein, both on sheet 1 as to “ estate, so 
far as known, under Government control.” And the instructions 
on the reverse side of sheet No. 3 must be followed; and in each 
instance all the information indicated in the blank concerning the 
immediate family of the decedent, and the names of the next of kin 
must be given whether or not all are heirs to the estate. In other 
words, the immediate family must be shown regardless of who are 
the heirs. This information is desired in order that the same may 
be on record for future use in the identification of subsequent hens 
to the estate, as well as for present use. The name of the State in 
which the decedent was living at the time of his death is also irnpor- 


8 


tant when any personal property is to he distributed, as such is usually 
distributed under the law of the State wherein the decedent was 
domiciled at the time of his death. Among other things, the record 
must contain {a) written application of heir or heirs, or oral appli¬ 
cation, if such was made, reduced to writing; ( b ) copy of public notices 
of hearing; (c) copy of notice to heir or heirs; (d) proof of service of 
notice; ( e ) copy of subpoenas for witnesses; (/) testimony taken at 
hearing; ( g ) affidavits and depositions produced at the hearings; 
(h) certified copies of marriage records and decrees of divorce, if 
filed; (• i ) all papers and memoranda of the hearing; (j) names of all 
persons present at the hearing; (Jc) statement of reasons for absence 
of interested parties, if obtainable; (Z) statement as to whether the 
decedent lived on his allotment, and whether any portion of same 
could be termed a homestead. In cases where homestead right is 
involved it should be fully set out in the finding. If the homestead 
is limited in value by the law of the State governing the descent, 
certificate of appraisement showing the value of the lands termed a 
homestead, or the lands on which the home and improvements are 
located, should be furnished. 

35. Cases to be kept separate. —To avoid confusion in the general 
files of the Indian Office by reason of the consolidation of several 
heirship cases under one file, each heirship case must be made com¬ 
plete within itself independent of any other such case. Where the 
same evidence is applicable to more than one case, sufficient copies 
of the evidence should be made for all the cases, the correctness of 
the copies to be certified to by the officer conducting the hearings, 
together with a reference to the case in which the original evidence 
is to be found. 

36. Prompt report when case is completed. —-Thorouglmess in com¬ 
pleting each case before taking up another is essential to careful and 
effective progress in the work, and a prompt report of each com¬ 
pleted case without any delay in awaiting others which may be 
nearly complete will expedite the work in the Indian Office and 
enable it to keep the calendar practically up to date. A case must 
be promptly forwarded as soon as it is ready for office action, and not 
held until other partially completed cases are ready. 

37. Supplemental hearings. —Supplemental hearings on 15 days 7 
notice to parties in interest should be held on heirship cases returned 
from the Indian Office for further evidence on material questions of 
fact. 

38. Does not apply to correction of clerical error. —These instruc¬ 
tions do not apply to cases returned for clerical corrections or addi¬ 
tional data which can be supplied from the records of the agency 
office. 


9 


39. Reopening case, when. —Where an interested party believes that 
his interest has not been properly protected he may apply for a,re¬ 
opening of the case by submitting through the examiner who passed 
on it, or, in his absence, through the superintendent of the agency, 
to the Commissioner of Indian Affairs a copy of all affidavits, records, 
or other evidence upon which he relies for a reopening, at the same 
time serving a copy of the same upon the adverse parties. 

40. Adverse parties allowed time to file brief. —The adverse parties 
will then be granted 30 days after the receipt of the aforesaid notice 
or motion for rehearing, and copies of evidence and testimony sub¬ 
mitted, in which to file a brief, if they so desire. The party making 
the motion will then be granted 30 days in which to file a brief in 
behalf of his contention, unless a prima facie case has not been made 
out in support of the applicant’s motion. 

41. Fee to he paid by heirs. —The law (Indian appropriation act for 
1915, 38 Stat. L., 582) provides that on the determination of the 
heirs of a deceased Indian there shall be paid by (1) such heir, or (2) 
from the estate of such deceased Indian, or (3) deducted from the 
proceeds from the sale of the land of the deceased allottee, or (4) 
from any trust funds belonging to the estate of the decedent, $15, 
which shall be covered into the Treasury of the United States. 

42. Fee to he collected promptly. —Superintendents are instructed to 
collect the required sum of $15 as promptly as possible after the re¬ 
ceipt of notice that the heirs of a decesaed Indian under their juris¬ 
diction have been determined by the Secretary of the Interior. 

43. Superintendent to approve check. —If the decedent has trust 
funds of any description on deposit under governmental control, the 
superintendent will sign and approve a check for the required $15*. 

44 . Expense where no trust fund, how paid. —If there are no funds 
belonging to the estate available, and there are funds to the credit 
of the heirs or any of them, the superintendent will call upon each 
of them to pay his or her proportionate share of the $15. In cases 
where the heirs of a decedent are all found to be competent to trans¬ 
act their own business affairs, and request the issuance of a patent 
in fee, the $15 required by the above-quoted act must be paid before 
such patent will be issued. 

45. Sale, how fee is collected. —In case a petition for the sale of the 
allotment of the decedent, or any part thereof, is presented, the 
superintendent will note on the petition whether the required $15, 
or any portion of it, has been paid. In the case of a sale where no 
part of the fee has been paid, the $15 will be deducted from the pro¬ 
ceeds of such sale before making distribution to the heirs. 

46. How taken up. —All funds received in payment of the required 
fee of $15 should be promptly taken up on the accounts of the dis- 


10 


bursing officers and deposited to the credit of the United States as 
miscellaneous receipts, class 1. 

47. Notice of collection. —For the convenience of the Indian Office, 
the superintendent will notify it immediately of any such deposit, 
indicating from whom or in what manner collected, with the name of 
the decedent and the number of his allotment. 

48. Fee collected, exception. —These instructions as to fees apply in 
all cases of trust allotments and in cases of restricted fee allotments, 
except those cases in which the alienation of the property must be ap¬ 
proved by the President of the United States under treaty agreements, 
and do not apply to cases only involving personal trust property. 

49. Wills, how filed for approval. —The will of any Indian of the 
class who may make such an instrument shall be filed with the super¬ 
intendent having jurisdiction over the property proposed to be dis¬ 
posed of by such will, who shall aid and assist the Indian as far as 
possible in the drawing of the paper writing, so that it will clearly and 
unequivocally express the wishes of the maker; but the superinten¬ 
dent must not in any way influence the person in the disposition he 
may wish to make of his property. 

50. Wills, how prepared. —The execution of the will, whenever 
practicable, should conform to the laws of the State in which the tes¬ 
tator is domiciled, where personal property is bequeathed, and to the 
laws of the State where the real property is located when such prop¬ 
erty is devised; and the will should be submitted in duplicate. 

51. Wills, form of. —The will should state (1) name, age, residence, 
and tribe of the maker, if an Indian; (2) names, ages, and relation¬ 
ship of the devisees; (3) the specific description of the restricted or 
trust lands attempted to be disposed of in order that examination may 
be made in the Indian Office by reference to its records to determine 
whether the land is actually allotted or inherited by the testator, 
whether a patent has previously been issued therefor, or whether the 
land has been sold under any law applicable thereto; (4) in case of 
personal property a description of the property bequeathed which will 
enable the Indian Office to identify it; (5) and signed at the end 
thereof by the maker in his own handwriting, if he can write, otherwise 
by mark and thumb print, and in all cases to be witnessed by two or 
more adult witnesses who can write. The will should be written on 
one side only of heavy paper and preferably in letter size. 

52. Form must be used when practicable, exception. —The form pre¬ 
scribed for wills as above must be adhered to strictly, except in cases 
where the will is filed with the superintendent after the death of the 
testator, or must be made under circumstances which make it imprac¬ 
ticable for the form to be used, as in cases of extreme sickness or other¬ 
wise, when delay would defeat the purpose of the maker. Superin- 


11 


tendents must endeavor in all cases where practicable to insist dnd see 
that the regular form of will is followed. 

53. Wills , superintendent’s report on submission to Indian Office .— 
The superintendent or other officer, before submitting such will, 
shall inquire fully into the mental competency of the Indian; the 
circumstances attending the execution of the will; the influences 
which induced its execution; and the names of those entitled to share 
in the estate under the State law of descent; and where the distri¬ 
bution proposed by the will has cut off natural heirs and disposed of 
all the estate to persons who would not otherwise inherit there should 
be obtained from the testator, if living, an affidavit setting forth the 
reasons for so disinheriting such natural heirs. In case the testator 
is dead endeavor should be made to ascertain from the most reliable 
sources the reasons for making such disposition. The competency 
of all devisees and legatees to manage their own affairs should be 
investigated. The report must be accompanied with a certificate of 
appraised value of the land. 

54- Will to be returned to agency. Codicil subsequently executed if 
desired. —In case the will is filed and approved before the death of 
the testator it will be returned to the superintendent or other officer 
for safe-keeping, and after the death of the testator should again be 
forwarded for record in the Office of the Commissioner of Indian 
Affairs. The Indian should be advised that the filing and approval 
of his will will not prevent its subsequent modification or revocation 
by the testator, but any such modification or revocation can be made 
only with departmental approval. The report of the superintendent 
or other officer submitting the will should contain in full detail the 
information required by these regulations and a specific recommenda¬ 
tion respecting its approval. 

55 . Heirs , when to be determined before will approved. —In cases 
where a will has been made and the testator has died before submit¬ 
ting the will for the consideration of the department a hearing shall 
be held to determine his or her legal heirs, and where the distribution 
made in the will differs from that which would otherwise be made 
under the State law of descent, if the testator had died intestate, the 
legal heirs shall be notified of the existence of the will and its pro¬ 
visions and be given full opportunity to object to its approval. 

E. B. Meritt, 
Assistant Commissioner. 

Approved September 13, 1915: 

(Signed) Bo Sweeney, 

Assistant Secretary . 


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